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Roe v. State Transit Rail Operations

December 24, 1998


Before Judges Pressler, Kleiner and Steinberg.

The opinion of the court was delivered by: Steinberg, J.A.D.

[9]    Argued: October 14, 1998

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Plaintiff Mary Jane Roe (a fictitious name) by her mother and natural guardian M. J. appeals from the grant of summary judgment in favor of defendant New Jersey Transit Rail Operations, Inc. (NJ Transit) and from the subsequent denial of her motion for reconsideration. We agree with plaintiff that there were genuine factual issues that precluded the grant of summary judgment and that Kuzmicz v. Ivy Hill Apartments, Inc., 147 N.J. 510 (1997) which was relied upon by the motion Judge, is distinguishable on its facts from those here alleged. Accordingly, we reverse.

Since this is an appeal from the grant of summary judgment, we review the evidence on the motion in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995). According to that evidence, on August 6, 1994, plaintiff, then twelve years old, was sexually assaulted by an unknown assailant. Plaintiff had been walking behind her sisters from her home to a public swimming pool. The route they took, a common route to the pool, crossed the north end of the Orange Street City Subway Station located at a grade level crossing of the Newark City Subway. The station is owned by the City of Newark, but is leased to NJ Transit. Inbound trolley cars stop on the south side of Orange Street and outbound trolley cars stop on the north side of Orange Street. An overpass for Interstate 280 (I-280) passes over the outbound side of the platform. Passengers using the trains wait on a wooden platform at the station where the cars stop to pick up and discharge passengers. A mile-long fence along the tracks, erected by NJ Transit on railroad property, separates the station from the adjacent Essex County park, known as Bound Brook Park. There is a gate in the fence beyond the passenger area leading into the park from the station which opens directly under the I-280 overpass. The gate, which permits access to the tracks by NJ Transit personnel, is also a commonly used entrance to the park and provides a shortcut through the park. It is undisputed that the gate and the fence are on property controlled by defendant. On the inside of the fence near the gate is a large NJ Transit sign for Orange Street.

The gate is mainly used by students who go through it to and from public school, and is also used as an entrance to the park. In his deposition, the superintendent of the Newark Subway System explained that while the gate had a latch, it had been generally left open and students from the area had been accustomed to swing on it, causing it to break. As a result, in either 1989 or 1990, the gate was bolted permanently open to prevent them from swinging on the gate and damaging it. The gate had not been bolted closed because it had been open for years and was known to provide access to the park. Although NJ Transit contends that the gate is not used by its passengers, the superintendent of the subway system conceded in his deposition the possibility that NJ Transit passengers use it for access to the station.

On the day on which the events here involved occurred, plaintiff exited the station intending to go through the gate into the park to swim in the park's swimming pool. She was apparently observed by a man sitting on the bridge embankment under the overpass. He ran toward plaintiff, confronted her, and dragged her behind thick vegetation growing next to the fence separating the station from the park. The assailant, through the use of force, brutally and repeatedly raped her. He then fled and plaintiff was able to run through the park to the pool where she found her older sisters. She told them what had happened, the police were summoned, and plaintiff was taken to the hospital. The assailant was never apprehended.

Plaintiffs filed suit against NJ Transit generally alleging its negligence by having bolted the gate open allowing it to become a commonly used means of ingress and egress to the Orange Street Station in an area that NJ Transit knew or should have known was an area of numerous assaults and other crimes. Although not couched in these terms, the gravamen of plaintiffs' complaint was that she was injured due to a dangerous condition of NJ Transit property.

NJ Transit moved for summary judgment dismissing the complaint, contending that as a matter of law, it had no liability for acts that had taken place off its property but rather on the adjacent park property belonging to Essex County. In opposition to the motion, plaintiff relied on the deposition of the subway superintendent as well as the deposition of three members of the Essex County police Department and a West Orange police officer. The police depositions attested to the general knowledge that the open gate was a commonly used entrance from the subway station to the park and that the area under I-280 next to the subway station, which had to be traversed in order to use the gate, was dangerous because of its inadequate lighting and seclusion. In fact many crimes, including homicide, robberies, muggings and sexual assaults had taken place there with the assailants making their escape through the park. Finally, plaintiff submitted NJ Transit's answers to interrogatories which explained that the fence had originally been erected, with the gate, because of reports that children had been walking on the tracks to reach the park to which there was no direct access from that location.

The motion Judge concluded that, as a matter of law, the Tort Claims Act N.J.S.A. 59:1-1 to 12-3; and particularly N.J.S.A. 59:4-2 (dangerous condition of public property) did not impose liability upon NJ Transit since the incident took place in the county park rather than on property owned by it. The Judge relied on Kuzmicz, supra, in holding that NJ Transit had no duty to protect plaintiff from criminal assault on adjacent property not owned by it. We conclude that the Judge erroneously applied Kuzmicz to the facts here.

We agree that NJ Transit is a public entity entitled to the protection of the Tort Claims Act. See Ross v. Transport of New Jersey, 114 N.J. 132, 145 (1989). Compare Lieberman v. Port Authority, 132 N.J. (1993) (Port Authority of New York and New Jersey is liable for failure of due care in protecting passengers as though it were a private corporation). We also acknowledge that under the Act, a public entity is not liable for an injury, unless liability is expressly imposed by the Act. Garrison v. Township of Middleton, 154 N.J. 282, 286 (1998). We must therefore look to the Act to determine whether there is a genuine factual issue as to NJ Transit's potential liability.

N.J.S.A. 59:4-2 provides as follows:

"A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:"

"a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment ...

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